Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F2372
SIMS, Acting P. J.A jury convicted defendant Edward Ray Frisbie of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 2), and possession of a hypodermic needle without a permit (Bus. & Prof. Code, § 4140; count 3). Defendant was placed on formal probation for 36 months on the conditions that he attend a drug treatment program and pay certain fines and fees.
On appeal, defendant contends: (1) his motion to suppress the methamphetamine and needle should have been granted because the traffic stop was unreasonably prolonged, and (2) denial of his Pitchess motion was erroneous and prejudicial. We shall affirm the judgment.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTS FROM SUPPRESSION HEARING
Prosecution Case-In-Chief
On March 9, 2006, at around 8:22 p.m., Deputy John Kropholler noticed a pickup truck with an illegible rear license plate. Specifically, a towing ball obstructed his view of the first letter and number. In addition, a letter and a number were almost entirely scratched off of the plate. Kropholler stopped the truck and contacted the driver, whom he identified in court as defendant.
Deputy Kropholler asked defendant for his license and registration. Kropholler then asked defendant to step out of his truck for officer safety because defendant appeared to be nervous. Kropholler had defendant stand by the front of the patrol car. At that point, Kropholler asked if he could search defendant’s person and truck for weapons and drugs. Defendant responded, “Sure, go ahead.”
In a pocket of defendant’s pants, Deputy Kropholler found a white crystal-like substance that he suspected to be methamphetamine. He placed defendant under arrest. Defendant directed him to the front seat of the truck, where Kropholler found a candy box containing five hypodermic needles.
Defense
Defendant testified that Deputy Kropholler stopped his truck and then approached him and asked for his registration and insurance information. Defendant responded by asking whether Kropholler also wanted his driver’s license. Defendant testified that the question made Kropholler “very upset.” He called defendant a “smart ass” and told him to get out of the truck. Kropholler pushed defendant up against the truck, placed defendant’s hands behind his back, and began frisking him. Immediately after the frisk, Kropholler placed defendant in handcuffs. Kropholler never asked for permission to search.
Defendant testified that after he was handcuffed, Deputy Kropholler placed him on the patrol car’s front bumper and later moved him to the front seat; evidently a dog was in the rear seat. Once defendant was in the patrol car, Kropholler searched the truck.
On cross-examination, defendant testified that Deputy Kropholler had pushed him up against his truck and then had handcuffed him. When the prosecutor asked, “Didn’t you just testify on direct examination that he didn’t put the handcuffs on you until after he searched you,” defendant answered, “No, I did not.”
Defendant denied having any methamphetamine in his pocket. He testified that Deputy Kropholler had found “a white Baggie of stuff in the back of [defendant’s] truck in a Pepsi can.” Defendant admitted that Kropholler found five hypodermic needles in a candy box in the truck. He further admitted that the needles belonged to him.
Argument and Trial Court Ruling
The parties stipulated that there was no search warrant.
Defense counsel argued that the evidence should be suppressed because the initial stop was unlawful, and defendant did not consent to a search of his person or truck. Counsel theorized that defendant had made some statements that upset Kropholler and caused him to remove defendant from the car, handcuff him, and search him without permission.
Defense counsel theorized that Officer Kropholler did not get “a good look at” the license plate before making the traffic stop. Counsel never explained whether this was the result of the plate being obscured, as Kropholler testified, or whether it occurred for some other reason. Counsel further theorized that Kropholler violated internal procedure by failing to broadcast the license plate number, noting any obscured characters, before getting out of the patrol car as opposed to broadcasting the characters from his portable radio after approaching the truck. Neither of these arguments identified any basis to conclude the traffic stop was unlawful.
The prosecutor argued that Kropholler had reasonable suspicion to make a traffic stop because he had observed a license plate that was illegible due to the towing ball and the scratched letters. The prosecutor argued that Kropholler’s testimony established a valid consent to search defendant’s person and truck.
Defense counsel called the court’s attention to federal cases indicating that a motorist would not feel free to leave the scene of a detention while the officer retains control of the motorist’s identifying documents.
After hearing the evidence and arguments, the trial court denied the suppression motion. Noting that the evidence regarding the obscured license plate was undisputed, the court found that the traffic stop was legitimate.
Regarding consent to search, the court noted that “[t]he officer has testified in one manner, the defendant has testified in another, and then in another.” The court explained that in his “[d]irect testimony,” defendant had “said he was searched and then cuffed.” However, “[o]n cross-examination, he said he was cuffed first, before being searched. Big differences there. It also brings into suspicion the credibility of the defendant when he testifies in two different manners upon a very key point.”
Defendant eschews any attempt to “overcome the overwhelming presumption of the substantial evidence standard” with respect to the court’s finding that he had voiced consent to the search. Instead, defendant reasons that the spoken consent was invalid because “Deputy Kropholler’s alleged request for consent overreached the lawful and constitutional scope” of a lawful traffic stop.
DISCUSSION
I
Defendant contends his motion to suppress the methamphetamine and needles should have been granted because the traffic stop was unreasonably prolonged. We are not persuaded.
“An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review. [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, viz., the reasonableness of the challenged police conduct, is also subject to independent review. The reason is plain: it is the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.” (People v. Williams (1988) 45 Cal.3d 1268, 1301; citations and internal quotations omitted.)
“[U]nder [Penal Code] section 1538.5, as in the case of any other motion, defendants must specify the precise grounds for suppression of the evidence in question, and, where a warrantless search or seizure is the basis for the motion, this burden includes specifying the inadequacy of any justifications for the search or seizure. . . . The degree of specificity that is appropriate will depend on the legal issue the defendant is raising and the surrounding circumstances. Defendants need only be specific enough to give the prosecution and the court reasonable notice. Defendants cannot, however, lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked.” (People v. Williams (1999) 20 Cal.4th 119, 130-131.)
Defendant acknowledges that here, “defense counsel did not argue in the trial court that the evidence should be suppressed because the stop became unreasonable under the Fourth Amendment when the deputy ceased pursuing its valid objectives and initiated a general investigation into drugs or weapons.” However, he claims “a change in theory may be permitted” when “the question is one of law and the necessary facts appear in the record.” (Citing People v. Carr (1974) 43 Cal.App.3d 441, 445.)
Defendant’s reliance on this rule is misplaced because a necessary fact--the amount of time by which the stop was prolonged--does not appear in the record. Defendant has forfeited the argument he now makes.
Citing People v. Mattson (1990) 50 Cal.3d 826, defendant asks us to consider the forfeited issue, in order “to forestall a later claim that trial counsel’s failure to predicate his motion on those additional grounds reflects constitutionally inadequate representation.” (Id. at p. 854.) However, the court in Mattson cautioned that its “consideration of defendant’s newly raised arguments in this case does not signal a willingness to do so in situations in which the People were denied the opportunity to present possibly dispositive evidence on the newly raised issues.” (Id. at p. 854, fn. 18; italics added.) Here, as we have noted, the prosecution was not alerted of the need to present “possibly dispositive evidence” of the length of the detention. (Ibid.) Defendant’s claim is not properly before us.
In any event, nothing in the present record suggests defendant’s detention was unreasonably prolonged.
In People v. Brown (1998) 62 Cal.App.4th 493 the court summarized the relevant principles as follows: “Questioning during the routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure. (U.S. v. Shabazz [(5th Cir. 1993)] 993 F.2d [431,] 436; accord, Florida v. Bostick (1991) 501 U.S. 429, 435, 439-440 [115 L.Ed.2d 389] [Police may approach a person in a public place and ask potentially incriminating questions and request permission to search without implicating the Fourth Amendment, so long as a reasonable person would understand he or she could refuse to cooperate.].) While the traffic detainee is under no obligation to answer unrelated questions, the Constitution does not prohibit law enforcement officers from asking. [Citations.] [¶] Obviously, this rule must be applied in light of the companion rule that the length of a detention must be reasonably related in scope to the circumstances which justified the interference in the first place. [Citations.]” (People v. Brown, supra, at p. 499; italics added; parallel citations omitted.)
In Brown, the results of the warrant check arrived in a minute. (People v. Brown, supra, 62 Cal.App.4th at p. 499.) “Thus, the request to search did not unduly prolong the detention or extend the period justified by the valid traffic stop.” (Id. at pp. 499-500.)
In this case, the record shows that Deputy Kropholler was not able to inform his dispatcher of the partially obscured license plate number until he approached the truck and broadcast the information on his portable radio. Because no evidence of the dispatcher’s response to the broadcast was presented, there is nothing in the record to suggest the dispatcher had finished checking the license plate number before defendant consented to the search. Thus, there was no evidence that the request to search unduly prolonged the detention or extended the period justified by the valid traffic stop. (People v. Brown, supra, 62 Cal.App.4th at p. 500.) Contrary to defendant’s argument, there was no evidence suggesting that Kropholler “was not in the process of conscientiously prosecuting the valid purposes of the stop,” or that he had “abandoned th[o]se lawful purposes in favor of an unrelated criminal investigation unsupported by reasonable suspicion or probable cause.” (Italics added.)
It may reasonably be inferred that, after receiving the report of the partially illegible license plate, the dispatcher performed a record check on that plate.
Because there was no evidence that Deputy Kropholler had abandoned the lawful purposes of the traffic stop, we need not consider whether People v. Lusardi (1991) 228 Cal.App.3d Supp. 1 remains good law for the proposition that such abandonment violates the Fourth Amendment.
This leaves the issue of the length of the officer’s questioning. Brown held that “[o]ne minute of generalized questioning during a routine traffic stop is not unreasonable.” (People v. Brown, supra, 62 Cal.App.4th at p. 499; see People v. Gallardo (2005) 130 Cal.App.4th 234, 238-239.) Here, the length of the detention was not put in issue at the hearing, and neither the prosecutor nor defense counsel asked any questions to elicit that information. For all that appears, Kropholler stopped defendant, requested his identification, had him get out of his truck, requested and received consent to search, conducted the search of defendant’s person, and discovered the methamphetamine, all in sequential order without any intervening events. Thus, nothing in the record suggests the request for consent to search and the granting of consent consumed more than a minute. The detention was not unduly prolonged, and the trial court properly denied the motion to suppress.
II
Defendant contends the trial court erroneously denied his motion for discovery of police personnel records, commonly known as a Pitchess motion. Specifically, he claims the trial court erred in light of our Supreme Court’s ruling in Warrick v. Superior Court (2005) 35 Cal.4th 1011. We are not persuaded.
Pitchess v. Superior Court, supra, 11 Cal.3d 531.
Background
Defendant’s Pitchess motion sought access to information in the personnel files of Shasta County Deputy Sheriff Kropholler. In support of the motion, defense counsel declared that defendant and Kropholler had testified inconsistently at the suppression hearing in that: Kropholler claimed that defendant consented to the search and that Kropholler found methamphetamine in defendant’s pants pocket; whereas defendant claimed that he did not consent to the search and that Kropholler found the methamphetamine “in the bed of the truck and not on his person and he had no personnel [sic] knowledge of the drugs.” Defense counsel averred that the information would be used to cross-examine Kropholler.
The motion requested “[a]ny and all files, folders or other records maintained by the Shasta County Sheriff’s Office, or in the records office of the District Attorney, Shasta County Counsel, Office of Citizen Complaints or a similar entity under the name of Deputy Kropholler, of the Shasta County Sheriff’s Office, which record or reflect any instance of relevant conduct, including but not limited to: (1) excessive force[,] (2) false arrest, (3) fabrication of charges, (4) fabrication of evidence, (5) unreasonable or illegal searches and seizures under the Fourth Amendment to the United States Constitution, and (6) dishonesty, or other instances of conduct unbecoming to an officer no matter how named, filed, designated, preserved or catalogued by the Shasta County Sheriff[‘s] Department or the Office or the Office of Citizen Complaints, and the Redding Police Department, or such similar entity.”
The trial court noted that defendant’s claim of officer misconduct, “when unfurled down, is simply an allegation that the officer said that he recovered the drugs from the cab [sic], but he actually recovered them from the pickup truck bed. . . . Sort of an awkward argument to make, he didn’t get the drugs from the truck cab [sic], he got the drugs from the truck bed.”
Defense counsel responded that the motion was intended to inquire into “some sort of pattern of conduct of that same type by the same officer.”
The prosecutor replied that the “scope of the information requested” was overbroad in light of the misconduct being claimed. The prosecutor agreed with the court that a mere claim the methamphetamine “wasn’t where he said it was. It was somewhere else on the vehicle,” was insufficient to warrant in camera review of personnel records.
The trial court denied the Pitchess motion and added, “as an aside, if it colors it, I did hear the 1538.5 in this matter. And the 1538.5 had the deputy testifying, and had the defendant testifying, and in my evaluation of that testimony, the deputy was forthright and frank. And I already heard that testimony. So for me to now make a decision, we’ll go ahead and investigate it, sort of seems to fly in the face of, in essence, a ruling that I already made.”
Analysis
“To initiate discovery, the defendant must file a motion supported by affidavits showing ‘good cause for the discovery,’ first by demonstrating the materiality of the information to the pending litigation, and second by ‘stating upon reasonable belief’ that the police agency has the records or information at issue. [Citation.] This two-part showing of good cause is a ‘relatively low threshold for discovery.’ [Citation.]” (Warrick v. Superior Court, supra, 35 Cal.4th at p., 1019.)
“To show good cause as required by section 1043, defense counsel’s declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery may lead to relevant evidence or may itself be admissible direct or impeachment evidence . . . . [¶] Counsel’s affidavit must also describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report. . . . [¶] . . . What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. [Citations.] [¶] A Pitchess motion need not, however, provide a motive for the alleged officer misconduct.” (Warrick, supra, 35 Cal.4th at pp. 1024-1025.)
“We conclude that a plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. . . . [¶] To determine whether the defendant has established good cause for in-chambers review of an officer’s personnel records, the trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the following inquiry: Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial? If defense counsel’s affidavit in support of the Pitchess motion adequately responds to these questions, and states ‘upon reasonable belief that the governmental agency identified has the records or information from the records’ [citation], then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant.” (Warrick, supra, 35 Cal.4th at pp. 1026-1027.)
In this case, defense counsel’s declaration in support of the Pitchess motion did not describe a specific factual scenario of officer misconduct with respect to consent to the search. (Warrick, supra, 35 Cal.4th at pp. 1024-1025.) The conclusory allegations that Kropholler “testified that [defendant] consented,” and that defendant “testified . . . that he did not consent,” do not identify any particular factual scenario of officer misconduct. For example, the declaration did not claim that Kropholler had not requested consent but later testified that he had done so; or that defendant had remained silent in the face of the request but Kropholler testified that defendant had spoken; or that defendant had spoken words that Kropholler had misconstrued as consent when in fact they were not; or that defendant had voiced consent under circumstances that Kropholler knew or should have known would render the consent involuntary. Defendant’s broad claim that he “never agreed to allow Officer Kropholler to search him” does not identify any such specific scenario.
To the extent that it sought officer information regarding excessive force and fabrication of charges, the motion was overbroad because defendant did not claim that either had occurred in this case. (Warrick, supra, 35 Cal.4th at p. 1021 [the specificity requirement excludes requests for officer information that is irrelevant to the pending charges].)
At the suppression hearing, Kropholler had testified that he requested consent and defendant said, “Sure, go ahead.” Defendant had testified that Kropholler “never asked” for permission to search. This specific factual conflict was not carried forward into counsel’s declaration.
Defense counsel’s declaration also failed to describe a specific factual scenario of officer misconduct with respect to the location of the methamphetamine. Thus, the declaration did not suggest that Officer Kropholler had lied -- and had not simply been mistaken -- about finding the methamphetamine in defendant’s pants rather than the bed of the truck. Although the declaration claimed that defendant lacked personal knowledge of the methamphetamine in the bed of the truck, it offered no specific factual scenario in which that would be so. For example, the declaration did not claim that someone other than defendant had used the truck and had left the methamphetamine there, or that a mere passerby had abandoned the methamphetamine there, or that Kropholler had planted the methamphetamine in the truck.
Unlike People v. Hustead (1999) 74 Cal.App.4th 410, defense counsel did not assert that Kropholler had “made material misstatements with respect to his observations,” or had fabricated defendant’s conduct. (Id. at pp. 416-417.) Defendant’s motion was properly denied “because it does not present a factual account of the scope of the alleged police misconduct, and does not explain his own actions in a manner that adequately supports his defense.” (People v. Thompson (2006) 141 Cal.App.4th 1312, 1317.)
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, J. HULL, J.